Neary v. Naqvi et al

Filing 33

ORDER denying 6 motion for a temporary restraining order and/or preliminary injunction. See attached order. Signed by Judge Vanessa L. Bryant on 08/28/2015. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTOPHER R. NEARY,
Plaintiff,

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v.
SYED JOHAR NAQVI, JOHNNY WU,
and ERINN DOLAN,
Defendants.

CIVIL ACTION NO.
3:14-cv-01631-VLB
August 28, 2015

MEMORANDUM OF DECISION DENYING PLAINTIFF‟S MOTION FOR A
PRELIMINARY INJUNCTION
In this civil rights action brought against two prison doctors for violations
of the Eighth Amendment, Plaintiff moves for a preliminary injunction seeking to
surgically remove a growth in his chest. Where, as here, the movant seeks to
alter the status quo, he must establish a clear or substantial likelihood of success
on the merits. Plaintiff has not done so. His personal disagreement with the
medical treatment that he received, which was medically appropriate according to
expert medical testimony, is insufficient to support a finding of deliberate
indifference. Accordingly, the motion is DENIED.
FACTS AND PROCEDURAL HISTORY
Plaintiff Christopher R. Neary, proceeding pro se and incarcerated at the
Osborne Correctional Institution, moves for a preliminary injunction.1 In his 42

1

Plaintiff also requests a temporary restraining order (“TRO”). “The
principal difference between a TRO and a preliminary injunction is that the former
may be issued „before the adverse party can be heard in opposition.‟” Tribul
Merch. Servs., LLC v. ComVest Grp., 2012 WL 5879523, at *18 (E.D.N.Y. Nov. 21,
2012). Because Defendants had notice, the Court treats this additional request as
a single motion for a preliminary injunction. See 13 Moore‟s Federal Practice
§ 65.31 (2013) (“However, when a temporary restraining order is sought on notice
1

U.S.C. § 1983 complaint, Neary alleges that Defendants Doctors Syed Johar Naqvi
and Johnny Wu acted with deliberate indifference to his serious medical needs in
violation of the Eighth Amendment.2 Specifically, Plaintiff alleges that Defendants
failed to alleviate his acute pain caused by moderate to severe bilateral
gynecomastia by surgically removing the growth.
At an August 27, 2015 hearing on his motion for a preliminary injunction,
Plaintiff chronicled the medical treatment that he received from Defendants.
According to Plaintiff, he received conservative treatment in the form of pain and
anti-inflammatory medication of increasing strength and frequency, but the
treatment failed to alleviate his pain.

He was prescribed ibuprofen, Tylenol,

Tylenol with the narcotic codeine, Tylenol with codeine and the anti-inflammatory
both twice daily, and is currently prescribed a Fentanyl patch.3 Plaintiff at times
did not receive any pain medication but stated that the medication did “nothing at
all” to alleviate his pain. He repeatedly requested treatment for his condition
throughout this period and requested that the growths be surgically removed
because the medication had absolutely no effect. Plaintiff contends that the pain
he continues to suffer from is more severe than the pain he experienced after a
car accident, during which he was thrown out of the car, broke his arm in four
to the adverse party, it may be treated by the court as a motion for a preliminary
injunction.”). In any event, the same standard applies. See Andino v. Fischer,
555 F.Supp.2d 418, 419 (S.D.N.Y. 2008) (“It is well established that in this Circuit
the standard for an entry of a TRO is the same as for a preliminary injunction.”).
Thus, the reasons for denying a preliminary injunction would also apply to
denying a TRO.
2
Plaintiff also brought claims against Erinn Dolan, but those claims were
dismissed pursuant to 18 U.S.C. 1915A. See Dkt. No. 9.
3
Dr. Wu testified that fentanyl is a potent synthetic opioid analgesic more
potent than morphine and given to terminal cancer patients.
2

places, was trapped under a truck, broke his back, and left him with a 25%
permanent disability.
On behalf of Defendants, Dr. Wu testified that it was his professional
opinion that Plaintiff should be treated conservatively with a course of pain
management, leaving surgical removal as a last resort.

The Court notes that

Plaintiff has a history of drug addiction but has been abstinent for nine years and
is currently participating in an intensive drug treatment program to help him
maintain his sobriety after his anticipated release in 2017.
Legal Analysis
Generally,

“a

party

seeking

a

preliminary

injunction

must

show

(a) irreparable harm and (b) either (1) likelihood of success on the merits or
(2) sufficiently serious questions going to the merits to make them a fair ground
for litigation and a balance of hardships tipping decidedly toward the party
requesting the preliminary relief.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 405–06
(2d Cir. 2011) (internal quotation marks omitted). However, where, as here, a
plaintiff seeks a mandatory injunction, i.e., “one that alters the status quo by
commanding some positive act,” a higher standard applies. Id. at 406 (quotation
marks omitted).

In those cases, the party seeking the injunction must

demonstrate, inter alia, “a clear or substantial likelihood of success on the
merits.” New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d
286, 294 (2d Cir. 2011) (internal quotation marks omitted).
Here, Plaintiff has failed to meet his burden of establishing a clear or
substantial likelihood of success on the merits on his underlying Eighth

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Amendment claim.

He admits that Defendants are currently treating his

gynecomastia fairly consistently by an escalating regime of pain management
medications. Dr. Wu testified that this treatment is medically appropriate and that
it would be the same course of treatment for someone who is not incarcerated.
While the Court appreciates the fact that the plaintiff strongly disagrees with the
professional opinion of Dr. Wu, Plaintiff‟s unsubstantiated disagreement is not
sufficient to support a finding of deliberate indifference.

See Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“It is well-established that mere
disagreement over the proper treatment does not create a constitutional claim.
So long as the treatment given is adequate, the fact that a prisoner might prefer a
different treatment does not give rise to an Eighth Amendment violation.” (citing
Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)); Hodge v. Wladyslaw, 2012 WL
701150, at *2 (S.D.N.Y. Mar. 6, 2012); Sonds v. St. Barnabas Hosp. Corr. Health
Serv., 151 F.Supp.2d 303, 311–12 (2001) (“Federal courts are generally hesitant to
second guess medical judgments and to constitutionalize claims which sound in
state tort law.” (citing, inter alia, Dean, 804 F.2d at 215 (“The Constitution does
not command that inmates be given medical attention that judges would wish to
have or themselves.”))); Wheeler–Whichard v. Canfield, No. 10–CV–358, 2011 WL
1225564, at *2 (W.D.N.Y. Mar. 24, 2011). Because the evidence produced thus far
is tantamount to a prisoner‟s disagreement with a medical doctor about the
proper course of treatment, Plaintiff has not sustained his burden of showing that
there is a clear or substantial likelihood that he will succeed on the merits.
Accordingly, the motion for preliminary injunction is DENIED.

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The Court expresses no opinion about the merits of Plaintiff‟s claims or
whether they would be sufficient under the lower preliminary judgment standard
generally applicable, particularly in view of the contraindication of treating a
recovering addict, who is highly susceptible to relapse with narcotics.
Conclusion
For the foregoing reasons, Plaintiff‟s motion for a preliminary injunction is
DENIED.
IT IS SO ORDERED.
/s/
_
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut, August 28, 2015.

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